A
collection of articles on Parental Alienation Syndrome and Parental
Alienation in family court proceedings in the United Kingdom by
'Joint Custody and Shared Parenting - Are the Courts Listening?' Justice of the Peace, Vol 165, (49), (2001b), pp963-966
Dr
L F Lowenstein M.A., Dip.Psych., Ph.D.
'Joint Custody and Shared Parenting - Are the Courts Listening?' Justice of the Peace, Vol 165, (49), (2001b), pp963-966
Introduction
Some
of the greatest problems in society arise as a result of marital
disharmony, divorce and allowing only one parent to be responsible
for the bringing up of the children, while the other is sidelined or
totally cut-off from fulfilling their parental role. In the United
States alone, 50 per cent of marriages now end in divorce.
The
question of whether there should be sole custody or split custody
(one child with one, and another with the other parent) after
separation or divorce has in recent years, given way to a preference
for "joint custody" and "shared parenting". This
eliminates the need for visitation rights and unsupervised or
supervised contact for the non-custodial parent.
In
my view, we are heading towards a new era, where the contribution of
both parents in the task of child rearing must predominate when a
marriage or
a partnership is at an end. Of course there are exceptions, when some kind of unsupervised or even supervised contact is preferable - the latter in particular when past abuse of the child is suspected or proven. While the child or children must be the main concern, this is linked closely to the family: ie, both of the parents and the child or children. The concept of joint custody and arrangements facilitating are preferable whenever possible. This is not usually an issue when all parties involved experience healthy, caring relationships prior to the parents' separation. But, whatever the natural advantages may be, joint custody also poses problems from time to time.
a partnership is at an end. Of course there are exceptions, when some kind of unsupervised or even supervised contact is preferable - the latter in particular when past abuse of the child is suspected or proven. While the child or children must be the main concern, this is linked closely to the family: ie, both of the parents and the child or children. The concept of joint custody and arrangements facilitating are preferable whenever possible. This is not usually an issue when all parties involved experience healthy, caring relationships prior to the parents' separation. But, whatever the natural advantages may be, joint custody also poses problems from time to time.
This
article will focus on four main areas: 1. The problems and advantages
associated with joint custody; 2. What should be done if joint
parenting or custody does not work? 3. What happens to the children
when alienation and hostility between the parents continues? 4. The
role of Judges and the courts.
The
Problems and Advantages Associated with Joint Custody
Needless
to say, marital or non-marital relationships do not break up without
good reasons. Usually, relationships end as a result of incidents,
arguments, incompatibilities, etc. This may, in some cases, leads to
hostility or even aggression in the form of domestic violence
(Lowenstein 1999d).
Sole
custody occurs where one parent has been excluded. This should only
happen when the excluded individual poses a physical, emotional or sexual danger to the children. It should never occur as a result of alienation by one parent against the other (sometimes termed parental alienation syndrome (PAS): Gardner 1987; 1989; 1992;1998; 2001. Lowenstein 1998; 1999 a, b, c; 2000; 2001).
happen when the excluded individual poses a physical, emotional or sexual danger to the children. It should never occur as a result of alienation by one parent against the other (sometimes termed parental alienation syndrome (PAS): Gardner 1987; 1989; 1992;1998; 2001. Lowenstein 1998; 1999 a, b, c; 2000; 2001).
In
cases of split custody, this can work most effectively when both
parents agree on how it should be done; this is not always easy and
the parents often need help in making decisions that are fair.
Marital
separation, being more than likely due to marital disharmony,
frequently leads to problems which continue, and in fact often
intensify, after the separation. At least one, possibly both, former
parties feel aggrieved by the hostility that results following the
break-up of the relationship. This has affected, and continues to
affect, the children, whether directly or indirectly. Conflicts
between parents affect children and can even cause traumas,
immediately or in the long-term. (This will be discussed later in the
article.) Children, especially the very young, cannot understand how
and why their parents are in conflict. They feel not merely upset,
but also insecure and helpless that the powerful guardians of their
existence should be quarrelling and sometimes threatening, as well as
showing, verbal and physical aggression towards one another.
Children
may react in a number of ways: they may seek to hide or withdraw from
the conflict between the most important people in their lives; or
attach
themselves to one or other of the parties. Children attempt to seek some semblance of security or normality. Gardner (1982) points out that joint custody is not for everyone, even if it is an ideal when it can be achieved as a result of the maturity and goodwill of the parents. If it is imposed on parents who are in conflict, it is unlikely to prove beneficial. If it is to work, parents must be able to put aside their personal animosities towards each other and concentrate on what is likely to be in the best interests of the children and what each individually can do to foster security for them. This should be their main aim. Thereby both parents have a combination of equal rights and responsibilities as to the welfare of their children, despite the fact they no longer live together.
themselves to one or other of the parties. Children attempt to seek some semblance of security or normality. Gardner (1982) points out that joint custody is not for everyone, even if it is an ideal when it can be achieved as a result of the maturity and goodwill of the parents. If it is imposed on parents who are in conflict, it is unlikely to prove beneficial. If it is to work, parents must be able to put aside their personal animosities towards each other and concentrate on what is likely to be in the best interests of the children and what each individually can do to foster security for them. This should be their main aim. Thereby both parents have a combination of equal rights and responsibilities as to the welfare of their children, despite the fact they no longer live together.
Not
all parents are amenable to this "ideal" arrangement. Many
prefer to distance themselves from their former partner. They often
wish to form new relationships and their former partner could be
viewed an impediment to this. Such a view leads to the feeling that
the children might be better off without the other natural parent
participating in the parenting process. The desire to extinguish or
eliminate one party from parental participation is often a mutual
consequence of marital disharmony followed by separation and/or
divorce. The adversarial system often exacerbates differences between
the former partners, as each solicitor in the case seeks advantages
for his particular client over the other.
Sometimes
it is possible, through mediation, to make both parents "see
sense" in establishing a post-divorce relationship leading to
joint custody or at least "split custody", or in some cases
"divided custody". In order to achieve any of these goals,
there must be a degree of "goodwill" between both parents
who put their children and their welfare first and foremost rather
than their own feelings. Not only does much depend on their
motivation towards this end, but also the role of a highly skilled
mediator may be necessary. The court must back the process of
mediation, being willing to encourage the process and to admonish one
party or the other if they fail to co-operate with the mediator. If
necessary, the court must go so far as to award sole custody to the
party who is amenable to the mediation process and is willing to
co-operate with mediation.
Where
one of the parents is denied access or a fair share of parenting
opportunities, justice must prevail. Steps should be taken to prevent
programming or alienation, which one of the parents could practice
against the other parent. The child should neither continue to suffer
from the relentless conflict between parents, nor achieve the
manipulation of both parents. The great advantages of joint custody
is that it a) sustains a state of parenting, as was previously the
case when the marriage or relationship was intact and b) provides
maximum access by both parents to the child or children. It is
therefore least disruptive for normal family life. It offers parents
balanced roles as far as the rearing of the children is concerned.
The
main drawback with joint custody is where the continuing conflict
between the parents affects the children and leads to possible
insecurity as they move from one home to another. This is especially
difficult where parents do not have the same approach to the
discipline and guidance of the children, or where one parent uses the
child against the former partner. It might well be necessary for the
divided couple to live not too distant from one another
geographically. The most important factor stems from the parents love
of their children and their willingness and capacity to co-operate
with one another because of this.
What
Should be Done if Shared Parenting or Joint Custody Does Not Work?
It
must be accepted that when joint custody is found to be ineffective
other forms of custody must be found. First, it is necessary for
parents to communicate, co-operate and consider the welfare of
children first and foremost and not seek to maintain the conflict.
Much
depends on Judges making the right decisions, including consideration
of which parent is likely to make the greatest effort in involving
the other parent in the process of caring for the child. When in
doubt, custody should fall to the parent who is less likely to
alienate the child against the other parent (Gardner, 2000). Equally,
a parent who seeks to exclude the other parent from caring for and
rearing a child, without valid reasons such as sexual, physical and
other abuse, should never be given sole custody. This is likely to be
the first step in avoiding the pernicious tendency of one or both
parents to attempt to alienate a child against the other. Where
alienation occurs, the custodial parent has the greater advantage and
is likely to be more successful in alienating the child towards the
non-custodial parent. (Attention will be drawn again to this point
when we discuss the role of the Judge and the court.) Following a
particularly rancorous divorce or separation, parental alienation
syndrome may arise (PAS):Gardner 1987,1989,1992,1998,2001;
Lowenstein, 1998, 1999 a, b, c, 2000, 2001. In that case, it could
well be best for a third party to take over the care and
responsibility of the children until the situation is resolved - ie,
until both parties can be convinced that it is best to co-operate
with one another for the benefit of the children. This, in turn, has
spin-off benefits for the children as well as the parents. Whilst
mediation by a qualified psychologist is essential, so is a court of
law which backs such an approach and the decisions made via
mediation. By "backing" it is meant that the court
penalizes one or both parents who fail to co-operate with the efforts
of the mediator - this includes when one parent deliberately attempts
to alienate the child(ren) against the other parent.
What
Happens to the Children When Alienation and Hostility Between the
Parents Continues?
This
is a question frequently asked in courts, by Judges as well as the
alienated parent. One is rarely asked the question by the parent who
has custody of the child and who may be carrying out the alienation
process against the other! That parent cannot or does not wish to see
that excluding their former partner from the parenting process can
cause serious emotional and behavioural problems, both now and in the
future. This is especially the case where there is a consider-able
amount of conflict during the marriage and after the parents
separate. While parents are in the throes of such conflicts they
often behave irrationally and cannot see what it is they are doing to
their children. It becomes a tug-of-war wherein the child(ren) and
their true feelings are ignored.
Children
are forced against their will to take sides and often to be against
the other parent. It is difficult for the children to remain neutral
since they cannot please both parents simultaneously, especially in
front
of
one another. They will, on the whole, side with that parent who
appears to promise them the most security, support and often
extrinsic rewards also. Thereby, the non-custodial parent is
sidelined and even eventually totally rejected by the children due to
the influence of the custodial parent.
This
leaves the rejected parent with several choices:
1.
Due to the uphill battle involved he/she is likely to opt out of
their parental responsibilities altogether. This will be used in turn
as ammunition by the alienating parent: "You see he/she doesn't
care and is leaving it all to me to look after you".
2.
He/she will battle on for a long period of time, often for years due
to their dedication to the child, in order to have access so they can
fulfil a parenting role. This will equally be used by the custodial
and alienating parent: "You see he/she is making trouble for me
as he/she has always done, dragging me through the courts and trying
to have me punished".
Here
we have an obvious "no win" situation for the parent who
has been sidelined or alienated. In the UK, Judges, tend to take what
they consider to be a pragmatic position, tending to favour the
parent who has custody of the child (usually the mother).
Associated
with this choice is the traditional view that mothers should have a
prominent role in caring for their children, irrespective of what the
father might be able to do for the child.
In
the USA, in order to prevent or deal with this kind of parent. Judges
or courts will mandate a parent to attend mediation classes, usually
held by a clinical/forensic psychologist with expertise in mediation
and family problems. That psychologist is then responsible for
reporting back to the court. The report must contain information as
to how much or how little a parent is co-operating in allowing both
parents to participate in their parenting role.
Destroying
the parenting role and authority of one parent can produce a child
who has strong anti-authority, or anti-social feelings - this can be
a problem for life. It begins with children gaining an unhealthy
power over adults as they successfully play one off against the
other. Such children will often have difficulties in school or
elsewhere for trying to "buck the system". Since there are
repercussions, the child will often develop behavioural problems and
emotional difficulties including hostility, depression, sleeping and
eating disorders and other related issues. If often begins with the
child failing to get up in the morning, to go to school, to do
homework and study, and eventually truanting.
The
reaction of the child to continued conflict has been well documented
by Gardner (1987, 1989, 1992, 1998, 2001; and Clawar & Rivlin,
1991; and Lowenstein 1998, 1999, a, b, c, d, 2000, 2001). Therefore,
it is imperative that conflicts be prevented and remedied as soon as
possible. Prevention, in the case of hand-over difficulties, can be
achieved by locating a neutral site such as a police station, court
of law or Social Service Centre. Sometimes using an intermediary who
is not a party to the parental conflict is necessary. That person can
hand over the child or children from one parent to the other as an
interim arrangement, thus reducing the likelihood of arguments or
violence between parents when they meet. When the likelihood of
hostility has been reduced via mediation, this course of action will
no longer be necessary.
When
there is a high level of conflict between parents, this will effect
the children and therefore special mediation practices are necessary,
especially when dealing with Christmas Holidays and holidays in
general. As a mediator, it is often necessary to spend a lot of time
with individual parents before allowing them to meet for the purpose
of developing parental co-operation. Such meetings between the
parents should only happen when the mediator feels that both parents,
when they meet, will have a higher pro-portion of areas of agreement
as opposed to disagreement.
It
must be remembered that the more hostile parent who has custody of
the child may be clinging to that child for emotional support as well
as for revenge purposes. Such parents are unlikely to wish to
relinquish any control of a child for that reason alone. In turn, the
child, having identified with the views of the custodial parent, is
likely to react to this by reciprocating in his/her need for the
emotional support of the custodial parent, therefore shutting out the
other parent even more. This frequently leads to the child expressing
the view (obviously supported by the hostile parent) that he/she
wants little or no further contact with the other parent.
Unfortunately, this will often be taken at "face value" by
a court welfare officer, a guardian ad litem and a Judge. It is then
followed by the claim that the child has the right to choose and to
avoid contact, or only maintain minimal contact with one of the
parents. This is the easy way out; it is also the wrong way. While
the views and preferences of children must be respected, it must be
important to assess and understand where these thoughts and attitudes
originate! These are unhealthy thoughts and attitudes since they are
based on what the alienating parent wants the child to do or to
behave like. Such a disposition is inculcated in the child by the
alienating parent. This, however, is not in the children's short or
long-term interest. Judges and others must be made aware of the
insidious process of programming and alienation. It is therefore
important to avoid making decisions that are strictly based on what
can only be viewed as effective or successful alienation by a
custodial parent. This lead us to the final section on Judges and the
Courts in relation to custodial decisions.
The Role of Judges
and the Courts
Judges
and courts have a most important role to play when couples separate
or are divorced, and when they are in constant conflict over who
should have responsibility for the care of children. When one parent
seeks to exclude another parent from sharing parenting, unfortunately
the courts tend to help that custodial parent to succeed in this.
Judges are concerned when custodial parents fail to accept that they
must share the actual care of children with another. This is likely
to occur when the parent who has control of the children seeks to
sideline or totally reject the other parent's rights and
responsibilities to play a parental role.
The
parent who has custody is often viewed as the best parent to have
control over children - a situation that Judges find difficult to
reverse. Therefore, they give the non-custodial parent little or no
opportunity to play a parenting role. Those who seek, often for
several years, to gain access and contact with their children whom
they love and to whom they are dedicated, are often not viewed as
caring, loving or responsible parents eager to involve themselves in
the future of their children. As pointed out by Coe (2001), they are
seen as "... obsessive, insensitive trouble makers for coming
back to court because they are not seeing their children".
Sadly, this is the view of too many UK Judges, despite the
overwhelming research which has shown that children do better in life
if both caring parents are actively involved in parenting.
To
the question whether courts should order children with PAS to visit
and/or reside with the alienated parent: the research by Gardner
(2001) gives a clear response. Gardner describes 99 cases in which
the author was directly involved. Here Judges transferred residential
custody to the alienated parent. The outcome when such orders were
implemented in 22 cases were compared with 77 cases when this did not
happen. In the 22 cases, PAS symptomatology was significantly reduced
or even eliminated. Where the court did not reassign custody to the
alienated parent, parental alienation symptomatology increased in 70
children (90.9 per cent}. In only seven cases (9.1 per cent) of the
non-transferred children was there "spontaneous improvement".
Custodial change and a reduction in alienators access to children was
found to be associated with reduction in parental alienation
symptoms. Despite the emphasis on "equality" of the sexes.
Judges
still give preference to the mother when it comes to sole or primary
custody. Such gender bias is out of place in this day and age. Again,
it must be stressed that it is the parent who is more rational and
fairer in involving the other parent in playing a parenting role who
should be given custody, irrespective of the gender. The child should
never be forced to choose sides. This is not the way for the child
ultimately to feel secure. The child will feel secure only when both
parents are involved in the parenting process and treat one another
with respect and with consideration and not with hostility.
Adjudicating Judges must consider this important point when
determining custody matters.
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